The Lives Federalists Won’t Save

The young obstetrics and gynecology resident watched as the two-pound fetus was placed in a bucket, crying and struggling to breathe. Although the other medical personnel who participated in the illegal abortion pretended not to notice, the medical student recognized they were overstepping the bounds of morality by picking and choosing who should live and who should die.

Soon the crying stopped, says physician and Congressman Ron Paul in his forthcoming book, Liberty Defined . This harrowing event forced me to think more seriously about this important issue.

Paul has thought seriously about the issue . Over the past four decades he has become one of the most prominent pro-life voices within libertarianism. But his consistency on the issue of the sanctity of life is trumped by his allegiance to federalism. Although Paul admits that the federal government has a responsibility to protect human life, he inexplicably does not believe the federal government should be involved in protecting human fetal life. He is also surprised to find that few pro-life advocates share his view that only state governments have the responsibility to protect these innocents:

Strangely, given that my moral views are akin to theirs, various national pro-life groups have been hostile to my position on this issue. But I also believe in the Constitution, and therefore, I consider it a state-level responsibility to restrain violence against any human being.

I disagree with the nationalization of the issue and reject the Roe v. Wade decision that legalized abortion in all fifty states. Legislation that I have proposed would limit federal court jurisdiction of abortion. Legislation of this sort would probably allow state prohibition of abortion on demand as well as in all trimesters. It will not stop all abortions. Only a truly moral society can do that.

Paul is right to say that legislation alone will not end the tragedy of abortion. Even if Roe v. Wade is overturned by the judiciary, the issue will shift to fifty state legislatures, requiring a long-term, incrementalist approach to protecting the unborn. If this were all he meant”if Paul were merely making a pragmatic suggestion that the issue is best resolved at the state level”his position would be unobjectionable.

But as he tends to do on Constitutional issues, Paul puts his preference for procedure ahead of principle. If any level of government fails to do its duty in defending and protecting the lives of its innocent citizens, it is the obligation of the other branches to compensate for the failure in governance. Paul disagrees, preferring, when the two conflict, to defend federalism rather than the lives of the unborn.

Unfortunately, many pro-life conservatives share Pauls libertarian view of federalism. They mistakenly assume that American-style federalism”a system that shares power between the federal government and state governments”is an inherently conservative philosophy. But federalism is a neutral philosophical position; it is neither conservative nor liberal. As Robert Alt once explained at National Review Online ,

Contrary to our liberal friends’ assumption, federalism is not necessarily conservative. Rather, federalism is a series of constitutional rules, and as rules cut against both conservative and liberal positions alike. Yes, federalism will disappoint those who think that the only solution is a national one, but in terms of policy outcomes, federalism proves itself to be a neutral dealer.

The proper scope of federalism is limited to determining what level of government”state or federal”should have specific power and authority. What federalism doesnt address are situations in which neither the state nor federal government has a legitimate claim to power and authority. Too often conservatives”especially conservative politicians”read the 10th Amendment too broadly. They interpret the claim that that powers not delegated to the federal branch are reserved to the States or to the people as implying that just about anything can be decided by the individual State.

For example, at least three of the GOP candidates from the last election (Mike Huckabee, Mitt Romney, Fred Thompson) defended adherence to federalism by using the unfortunate phrase “laboratories of democracy.” None of the candidates seem to be aware of the metaphors nefarious origin. The famous dictum by Justice Louis D. Brandeis, notes federalism scholar Michael Greve, had almost nothing to do with federalism and everything to do with his commitment to scientific socialism.”

Indeed, the problem with the laboratories of democracy view of federalism is that it is more applicable for advancing socialism than for protecting conservative interests.

For instance, under federalist principles, the state of Massachusetts could become a socialist utopia (or dystopia) if the people of the state so choose. The state government could assume complete control over all internal institutions, could redefine all other societal organs (marriage, schools, corporations) and refuse to recognize any institution that didnt comply.

For example, Massachusetts could redefine marriage to include only polygamous arrangements and refuse to recognize any other form. As long as Massachusetts didn’t extraterritorialize its policy decisions on other states, its polity would be perfectly within the bounds of federalism.

This is certainly not what most conservatives”especially those who confuse adherence to federalism with limited government”have in mind.

The alternative is not to abandon federalism but to recognize its limits. While federalism has its place in deciding constitutional questions, its strict binary nature”either state or federal”is ultimately inferior to other principles of governmental demarcation, such as subsidiarity or sphere sovereignty.

The principle of subsidiarity is an idea found in Catholic social thought that holds that nothing should be done by a larger and more complex organization that can be done as well by a smaller and simpler organization. A related idea from the Reformed tradition (the one to which I subscribe) is the neo-Calvinist notion of sphere sovereignty. Sphere sovereignty is the concept that each sphere of life has its own distinct responsibilities and authority or competence, and stands equal to other spheres of life. No one area of life or societal community is sovereign over another since each sphere has its own created integrity.

Unlike Federalism, where there is a part-whole relationship between the States and the Federal branch, each societal sphere (such as churches, families, or charities) is a whole unto itself. Because these positions limit the role of government and protect the dignity and liberty of both individuals and communities, they are exponentially more conservative than garden-variety federalism.

Subsidiarity and sphere sovereignty also can prevent a central failing of federalism: the tendency to allow squabbles over power to trump matters of justice. One of the most disheartening and shameful examples from the last decade was when so-called conservatives claimed that the Terri Schiavo case should have been left solely to the state of Florida, and that it was illegitimate for the federal government to intervene to protect her. The charitable view is to assume that had these federalists known that a woman was being killed by the state without due process of law, they would have sided with justice over judicially mandated involuntary euthanasia. The less generous opinion is that they simply haven’t considered how federalism relates to conservative principles.

If conservatives are willing to put the rights of the government ahead of the rights of the individual, to let adherence to procedure trump our dedication to justice, and to give the state the power to decide whether one can kill an innocent woman or an unborn child, then conservatism has lost all meaning. Conservatives should be for more checks and balances and limits on government, rather than a mere shifting of power from federal to state authorities. What does it reveal about our movement when conservatives (and libertarians) are defending limited government by advocating that state governments be allowed an increase in unchecked power and illegitimate authority?

Federalism can be useful in drawing up legitimate lines of Constitutional authority. But when it is allowed to transfer power to the states from other societal spheres, the philosophy merely establishes fifty separate laboratories of liberalism.